Domestic Partnerships and Cohabitation Agreements in the Philippines

“Domestic partnership” can have two meanings under Philippine laws. It may refer to a domestic partnership in the context of corporations, or a domestic partnership in the context of marriage. The two concepts will be discussed below.

Along the same line as a “domestic corporation” (as opposed to a foreign company), a “domestic partnership” (as opposed to foreign partnership) may refer to a partnership created and registered under Philippine laws. A partnership exists when two or more persons bind themselves to contribute money or industry to a common fund, with the intention of dividing the profit among themselves (Civil Code, Article 1767). The partnership has a juridical personality separate and distinct from that of each of the partners (Art. 1768) and may be registered with the Securities and Exchange Commission (SEC). A foreign partnership, just like a a foreign corporation, may be registered in the Philippines. 

Domestic partnership can also refer to the relationship between two persons in the context of living together as a family sans a valid marriage. Marriage is governed by a specific law, the Family Code of the Philippines, which law provides for specific requirements and specific effects. Marriage is limited to a union between a man and a woman. On the other hand, couples in a domestic partnership may be of the same or different gender (same-sex marriage is not yet allowed in the Philippines). 

Upon the celebration of marriage, a spouse automatically becomes a compulsory heir of the other spouse. A specific property relationship kicks in by default (absolute community of property) even without any agreement between the spouses. This does not happen in unions or domestic partnerships outside the ambit of marriages celebrated in accordance with the Family Code

This does not mean that there are no laws governing domestic partnerships. In the same way that spouses under the Family Code can agree on a different property regime (conjugal partnership of gains, or complete separation of property) by executing a contract before the wedding (called a prenuptial agreement), the parties to a domestic partnership can, to a certain degree, enter into an agreement to govern certain aspects of the relationship (called a “cohabitation agreement”). Incidentally, the term “cohabitation” has a specific meaning in the Philippines; it means “to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional, transient” sexual relationships.

Laws automatically apply given a set of facts. For instance, absolute community of property automatically applies in the event that the spouses in a State-sanctioned marriage fail to execute a prenuptial agreement. “Common-law” or “live-in” marriage or relationships are governed by the Family Code, depending the existence (Art. 148) or non-existence (Art. 147) of an impediment to marry. [See Common-law marriage and live-in relationships in the Philippines]

For domestic partnerships in the context of unions sans marriage, the applicable provisions are not the rules on partnership, but the rules on co-ownership. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of a contract between the domestic partners, co-ownership is governed by the Civil Code (Art. 484). The portions belonging to the co-owners is presumed equal, unless the contrary is agreed or shown (Art. 485). As a rule, no co-owner shall be obliged to remain in the co-ownership, but the co-owners may validly agree to to keep the thing undivided for a certain period of time, not exceeding ten years, subject to extensions (Art. 494). There are, of course, other applicable provisions on co-ownership, but the foregoing provisions sufficiently illustrate the point that the parties to a domestic union can enter into such contract. 

There are, of course, limitations. In terms of succession/inheritance, a spouse in marriage is a compulsory heir of the other spouse. Domestic partners are not compulsory heirs of each other. Even a designation in a last will and testament is subject to the general provisions on compulsory heirs and legitimes. In other words, the challenge in domestic partnerships and cohabitation agreements is to navigate through legal waters to determine what aspects may or may not be agreed upon. A law on domestic unions or partnerships, while short of marriage, can address these concerns. 

Atty.Fred

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